Who Can Be Liable After an Aviation Accident

Parties and Their Sources of Duty

Aviation accident liability can fall on several organizations and people, and each one owes a duty that comes from a different source: a carrier’s duty to its passengers, a manufacturer’s product obligations, a mechanic’s maintenance standards, or a federal law that allows suits against the United States. Which of them is responsible in a particular case depends on the facts, the kind of flight, and the law of the place where the case is heard, so none of the standards below applies the same way everywhere.

The table lists the main parties, the source of each party’s duty, and records that can show what happened. Maintenance entries, which show who did work on an aircraft and who approved it, are created under the FAA regulations that govern maintenance.

Air Carriers and Operators

Courts have described an air carrier as a common carrier that owes passengers a very high degree of care. In Croce v. Bromley Corp., 623 F.2d 1084 (5th Cir. 1980), the Fifth Circuit, applying Louisiana law, stated that a common carrier ordinarily owes a passenger the highest duty of care. The exact wording and strictness of that duty differ from state to state. Federal law points in the same direction: when the FAA writes safety rules, 49 U.S.C. 44701(d) directs it to consider the duty of air carriers to provide service with the highest possible degree of safety in the public interest.

A carrier can also answer for the conduct of its crew. Under the doctrine of respondeat superior, an employer is legally responsible for the wrongful acts of an employee, and a pilot or mechanic employed by a carrier is an example of an employee. Separately, 14 CFR 91.3(a) provides that the pilot in command is directly responsible for, and is the final authority as to, the operation of the aircraft. That regulation sets a safety standard for the flight; how it bears on a civil case is decided under the governing law.

Operational control is the second question. Federal regulations define it in 14 CFR 1.1 as the exercise of authority over initiating, conducting, or terminating a flight. For airlines conducting domestic operations under Part 121, 14 CFR 121.533(a) provides that each certificate holder is responsible for operational control. Operators sit alongside manufacturers, repair stations, and agencies in the shared system of aviation safety responsibility.

Manufacturers, Suppliers, and Certificate Holders

Product liability theories ask whether a product was defective in how it was made, how it was designed, or how it was labeled. The American Law Institute’s Restatement (Third) of Torts: Products Liability describes three categories of product defect: manufacturing defects, design defects, and inadequate instructions or warnings. A restatement is a scholarly summary, so whether a court uses those categories, and how, depends on the governing law.

Federal regulations add continuing duties for companies that hold FAA design approvals. Holders of type certificates, parts manufacturer approvals, and technical standard order authorizations must report certain failures, malfunctions, and defects, including engine failure and significant structural defects, under 14 CFR 21.3, generally within 24 hours after determining that one occurred. After an airworthiness directive issues under Part 39, a type certificate holder must submit a design change for approval when the FAA determines one is needed to correct the unsafe condition, and must then give operators descriptive data about the change, under 14 CFR 21.99(a).

Parts and components follow their own path. Because holders of parts manufacturer approvals and technical standard order authorizations are covered by the same reporting rule in 14 CFR 21.3, a supplier’s defect reports can be among the records that show what the supplier knew about a part.

Maintenance Providers and Repair Stations

Anyone who performs maintenance, preventive maintenance, or alterations must use the methods, techniques, and practices in the current manufacturer’s maintenance manual or other methods acceptable to the FAA, under 14 CFR 43.13(a). The work must also be done, and the materials chosen, so that the item is at least equal to its original or properly altered condition, under 14 CFR 43.13(b).

A certificated repair station works within its ratings and operations specifications. Under 14 CFR 145.201, it may not approve an article for return to service unless the work followed applicable approved technical data or data acceptable to the FAA.

Each person who performs maintenance must make an entry in the maintenance record that describes the work, gives the completion date, and carries the approver’s signature and certificate number, under 14 CFR 43.9(a). Those entries show who did the work and who approved it. The owner or operator also remains primarily responsible for keeping the aircraft airworthy under 14 CFR 91.403(a), including compliance with Part 39.

The United States and Air Traffic Control

A suit over negligence by a federal employee, such as an error by a federal air traffic controller, is brought against the United States under the Federal Tort Claims Act. Under 28 U.S.C. 1346(b)(1), federal district courts have exclusive jurisdiction of civil actions against the United States for money damages for personal injury or death caused by the negligent or wrongful act or omission of a government employee acting within the scope of employment, where a private person would be liable under the law of the place where the act or omission occurred. The Act’s definition of federal agency excludes any contractor, and some control towers are staffed by employees of private companies under the FAA Contract Tower Program.

The United States is liable as a private individual would be under like circumstances, but not for punitive damages or for interest before judgment. A person generally cannot sue unless the matter was first presented to the federal agency involved.

The Act also contains the discretionary function exception, which excludes cases based on the exercise or performance, or the failure to exercise or perform, a discretionary function or duty, whether or not the discretion is abused, in 28 U.S.C. 2680(a). In United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797 (1984), the Supreme Court held that the exception barred suits over the FAA’s certification of two aircraft under a spot-check compliance program. Controllers follow FAA Order 7110.65, which prescribes air traffic control procedures and phraseology.

Airports and Airport Operators

Federal regulations in 14 CFR Part 139 govern the certification and operation of airports for airports that serve certain scheduled and unscheduled passenger operations by air carriers. The part does not apply to airports operated by the United States, to heliports, or to certain other airports. A certificated airport may not operate without an Airport Operating Certificate and must adopt and comply with an Airport Certification Manual. An airport outside Part 139 is not subject to these certification standards.

Owners, Lessors, and Charter Brokers

A federal law limits liability for people who own or lease aircraft without flying them. Under 49 U.S.C. 44112(b), a lessor, owner, or secured party is liable for personal injury, death, or property loss or damage only when the aircraft, engine, or propeller is in its actual possession or operational control, and the harm results from the aircraft, engine, or propeller, or from the flight of or an object falling from it. The statute defines a lessor as a person leasing for at least 30 days. This is why operational control, defined above, is often the central question for owners and lessors. For privately flown aircraft, private plane accident cases covers who can be responsible and how aircraft insurance limits apply.

Air charter brokers arrange single-entity charter flights without operating them. Federal regulations in 14 CFR Part 295 cover those brokers, and 14 CFR 295.23(a) requires advertisements and solicitations to state that the broker is not a direct air carrier in operational control of aircraft and that the service will be provided by a properly licensed direct air carrier.

Probable Cause Is Not a Liability Finding

The NTSB’s task under 49 U.S.C. 1131(a)(1)(A) is to establish the facts, circumstances, and cause or probable cause of an aircraft accident. That is an investigative finding, not a decision about legal responsibility. Federal law also separates the two: 49 U.S.C. 1154(b) provides that no part of a Board report related to an accident or its investigation may be admitted into evidence or used in a civil action for damages resulting from a matter mentioned in the report. How an NTSB investigation proceeds, and what each of its reports contains, is a separate subject from liability.

Responsibility is decided by a court or by a settlement, under the governing law, using evidence developed in the case. In aviation accident lawsuits, the sources of duty described above are tested against maintenance records, operating records, and testimony about what each party did.